At the Supreme Court’s oral argument on the constitutionality of same-sex marriage, several justices asked questions about the effects of same-sex marriage on religious freedom. These questions might not appear directly relevant to the question of whether the federal Constitution secures a right to same-sex marriage. But they are politically relevant because the method by which same-sex marriage is achieved may make a substantial difference to the accommodations to people who because of reasons of religious conscience do not want to encourage this social arrangement or be connected to its creation.
A political scientist would understand the attempt to fashion a federal right to same-sex marriage as an effort to change the political status quo by constitutional litigation. In states that to date do not recognize same-sex marriage, advocates of the institution would no longer have to negotiate with their opponents or compromise on such matters as whether religious colleges should be required to give benefits to same-sex couples.